Citation Nr: 0526567
Decision Date: 09/28/05 Archive Date: 10/05/05
DOCKET NO. 99-09 747 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased rating for service-connected
lumbosacral strain.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The veteran had active duty service from April 1992 to April
1996.
This appeal arises from a December 1998 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama, which denied the veteran's claim of
entitlement to an increased rating for service-connected
lumbosacral strain, evaluated as 10 percent disabling. The
veteran appealed. In April 2001, May 2003, and October 2003,
the Board remanded the claim for additional development.
In January 2001, the veteran was afforded a hearing before
Constance Tobias, who is the member of the Board rendering
the determination in this claim and was designated by the
Chairman of the Board to conduct that hearing, pursuant to 38
U.S.C.A. § 7102(b) (West 2002).
FINDINGS OF FACT
1. Prior to August 28, 2001, the veteran's lumbosacral
strain is productive of subjective complaints of pain, with
no more than slight limitation of motion, and not muscle
spasm on extreme forward bending and loss of lateral spine
motion unilaterally in a standing position.
2. As of August 28, 2001, the veteran's lumbosacral strain
is productive of subjective complaints of daily pain, and 45
degrees of flexion, with no more than moderate limitation of
motion, but not listing of whole spine to opposite side,
positive Goldthwait's sign, loss of lateral motion with
osteo-arthritic changes, or some of the above with abnormal
mobility on forced motion; or favorable ankylosis of the
entire thoracolumbar spine or forward flexion of the
thoracolumbar spine of 30 degrees or less.
CONCLUSIONS OF LAW
1. Prior to August 28, 2001, the criteria for a rating in
excess of 10 percent for lumbosacral strain have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§
3.102, 3.159, 4.40, 4.45, 4.71a, Diagnostic Codes 5292, 5295
(as in effect prior to September 23, 2002).
2. As of August 28, 2001, the criteria for a rating of 20
percent, and no more, for lumbosacral strain have been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5295
(as in effect prior to September 23, 2002); 38 C.F.R.
§ 4.71a, Diagnostic Codes 5235-5243 (as in effect September
26, 2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased Rating
The veteran asserts that he is entitled to an increased
rating for his service-connected lumbosacral strain. In a
letter, received in August 1998, he stated that he had been
in a very bad automobile accident which has deterred him from
functioning daily at a normal pace. He stated that he had
broken both arms, and sustained a compound fracture of the
femur, and that his right leg was now 3/4-inch shorter than his
left. He complained that this put a strain on his back and
that he must always walk with a cane.
Disability evaluations are determined by comparing the
veteran's present symptomatology with the criteria set forth
in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. §
1155; 38 C.F.R. § Part 4.
The words "slight," "moderate" and "severe" as used in the
various diagnostic codes are not defined in the VA Schedule
for Rating Disabilities. Rather than applying a mechanical
formula, the Board must evaluate all of the evidence, to the
end that its decisions are "equitable and just." 38 C.F.R. §
4.6 (2004). It should also be noted that use of terminology
such as "severe" by VA examiners and others, although an
element of evidence to be considered by the Board, is not
dispositive of an issue. All evidence must be evaluated in
arriving at a decision regarding an increased rating. 38
C.F.R. §§ 4.2, 4.6 (2004).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability to make a more accurate
evaluation, the regulations do not give past medical reports
precedence over current findings. 38 C.F.R. § 4.2 (2004);
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
As for the history of the veteran's low back disorder, see 38
C.F.R. § 4.1 (2004), the veteran's service medical records
show that he received treatment for back pain beginning in
September 1995, after his back "seized up" while he was
sneezing. The impression was thoracic back pain. On X-ray,
mild degenerative changes were noted in the thoracic spine,
and there was mild thoracic dextroscoliosis. The veteran's
separation examination report, dated in January 1996, shows
that he was noted to have scoliosis at T7-T8, with secondary
recurrent back pain.
As for the post-service medical evidence, a May 1996 report
from the Houghston Clinic notes treatment for back pain after
a lifting injury at work. The impression was chronic low
back pain, possible lumbar Scheuermann's disease, rule out
occult pathology. A November 1996 magnetic resonance imaging
(MRI) report from Columbia Houghston Sports Medicine Hospital
contains an impression of "No evidence of disc herniation.
Scheuermann's entity. Lumbus vertebrae at L3, L4, and L5."
A March 1997 VA spine examination report contains diagnoses
of chronic low back pain, pain in the middle of the back, and
scoliosis of the thoracic spine, with all three diagnoses
noting that X-rays findings were negative/normal.
In July 1996, the RO granted service connection, and a 10
percent rating, for lumbosacral strain. There was no appeal,
and this decision became final. See 38 U.S.C.A. § 7105(c)
(West 2002). In April 1997, the RO denied a claim for an
increased rating for lumbosacral strain, evaluated as 10
percent disabling. Notification of this decision was made by
cover letter, dated April 28, 1997. There was no appeal, and
this decision became final. Id. On April 20, 1998, the
veteran filed a claim for an increased rating. In December
1998, the RO denied the claim. The veteran appealed, and in
a June 2003 decision, the RO increased the veteran's rating
to 20 percent. The RO assigned an effective date of February
11, 2003 for the 20 percent rating. However, since this
increase did not constitute a full grant of the benefit
sought, the increased rating issue remains in appellate
status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Given the
foregoing, the issue may initially be stated as whether the
criteria for a rating in excess of 10 percent have been met
for the period from April 28, 1997 to February 10, 2003, see
38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2)
(2003), and whether the criteria for a 20 percent rating have
been met as of February 11, 2003. However, as explained
below, the Board has determined that the criteria for a 20
percent rating have been met as of August 28, 2001.
Therefore, the Board has discussed the evidence prior to, and
after, August 28, 2001.
The RO has evaluated the veteran's lumbosacral strain under
38 C.F.R. § 4.71a, Diagnostic Code (DC) 5295. Under DC 5295,
(as in effect prior to September 26, 2003), a 10 percent
evaluation is warranted for lumbosacral strain with
characteristic pain on motion. A 20 percent evaluation is
warranted where there is muscle spasm on extreme forward
bending and loss of lateral spine motion unilaterally in a
standing position. A 40 percent rating is warranted when
there is severe lumbosacral strain, with listing of whole
spine to opposite side, positive Goldthwait's sign, marked
limitation of forward bending in standing position, loss of
lateral motion with osteo- arthritic changes, or narrowing or
irregularity of joint space, or some of the above with
abnormal mobility on forced motion.
The Board notes that although there is evidence of disc
herniation beginning in September 2004, see September 2004 VA
spine examination report, service connection is not currently
in effect for intervertebral disc syndrome (IDS). Therefore,
the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5293 (as
in effect prior to September 23, 2002), Diagnostic Code 5293
(as in effect September 23, 2002) and Diagnostic Code 5243
(as in effect September 26, 2003), are not for application.
The Board further notes that, except as specifically
discussed below, it has not attempted to dissociate any low
back symptoms from the symptoms of the veteran's lumbosacral
strain. See generally Mittleider v. West, 11 Vet. App. 181,
182 (1998).
A. Prior to August 28, 2001
The Board finds that the criteria for a rating in excess of
10 percent are not met under DC 5295. The medical evidence
during the time period in issue includes reports from the
East Alabama Medical Center (EAMC) which show that in June
1997, the veteran was treated for injuries after he was in a
motor vehicle accident (MVA). He underwent an open reduction
internal fixation of the right femur with intramedullary
nail, and an open reduction internal fixation of the right
forearm with plate and screws. The discharge diagnoses were
comminuted fracture - right femur, fracture right forearm,
postoperative anemia, and tachycardia. Reports from Samuel
L. Combs, M.D., dated between 1985 and 1998, show that the
veteran received treatment for his June 1997 MVA injuries.
In summary, the medical evidence shows that the veteran
received treatment for injuries related to his June 1997 MVA.
There are no recorded ranges of motion for the lumbar spine,
and the Board finds that a moderate limitation of motion of
the lumbosacral spine is not shown. Accordingly, the Board
finds that the preponderance of the evidence is against the
claim that a rating in excess of 10 percent is warranted
under DC 5295.
A rating in excess of 10 percent is not warranted under any
other diagnostic code. Schafrath v. Derwinski, 1 Vet. App.
589 (1991). Briefly stated, the medical evidence does not
show treatment for low back symptoms, and there are no
relevant findings. Therefore, a rating in excess of 10
percent is not warranted under any diagnostic codes
pertaining to the lumbosacral spine, to include on the basis
of functional loss. See 38 C.F.R. §§ 4.40, 4.45 and 4.71a,
DC's 5286, 5289, 5292; DeLuca v. Brown, 8 Vet. App. 202, 204-
205 (1995); VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998).
B. As of August 28, 2001
The claims file includes a VA examination report, dated in
August 2001. This report indicates that the examination was
performed on August 28, 2001, and shows that there were two
examinations: one for the veteran's knees, and one for his
spine. The report for the knees indicates that the veteran
stated that he was a computer analyst who sits down so that
his joints do not interfere with his work. The report for
the spine shows that on examination, there was slight
objective evidence of painful motion, spasm, weakness, and
tenderness. There were no postural abnormalities. There
were no neurological abnormalities. The lumbar spine had 28
degrees of flexion to the right, and 29 degrees of flexion to
the left (with 50 degrees indicated as normal). Forward
flexion was to 84 degrees. Backward extension was to 23
degrees (with 30 degrees indicated as normal). The diagnosis
was degenerative joint disease of the lumbosacral spine, with
loss of function due to pain. An accompanying VA X-ray
report contains an impression of mild discogenic degenerative
disease at L2-3 and L3-4.
The Board finds that the criteria for a 20 percent rating
have been met as of August 28, 2001. Briefly stated, the
Board finds that the recorded ranges of motion for the lumbar
spine in the August 2001 VA examination report are such that,
resolving all doubt in the veteran's favor, the evidence is
at least in equipoise as to whether there is a moderate
limitation of motion of the lumbar spine. Accordingly, the
Board finds that the criteria for a 20 percent rating under
DC 5295 have been met.
As of August 28, 2001, a rating in excess of 20 percent is
not warranted.
The medical evidence includes a VA spine examination report,
dated in September 2004, which shows that the veteran
reported that in 2003 he underwent surgery for femoral
hardware removal that resulted in a fracture of the hip, and
which required the placement of two pins in his hip. He
complained of lumbar pain that went up to the thoracic spine
and to the right leg, followed by numbness to the toes,
lasting one to two days. He also complained of muscle spasms
and pain between four and nine on a scale of ten. He
complained of flare-ups lasting up to two weeks and missing
up to two days of work a month due to his back symptoms. He
stated that he had difficulty using stairs, bending at the
waist or squatting, and that he can't mow his lawn or
participate in his favorite sports. He denied bowel or
bladder complaints, visual disturbance, dizziness, malaise,
and erectile dysfunction. He stated that he used a cane two
to three times a week to prevent falls, and that he had
fallen one time due to his back. The report noted that he
has problems with his right hip and shortness of the leg that
can also cause a fall. He stated that he could walk one
block without difficulty when he was not experiencing a
flare-up. The functional assessment notes that he functioned
fairly well, and that he performed his activities of daily
living, driving and walking. On examination, the spine was
in good alignment without any lordosis, kyphosis, or
scoliosis. The thoracolumbar spine had forward flexion to 45
degrees, extension to 20 degrees, left lateral flexion to 25
degrees, right lateral flexion to 20 degrees, and rotation to
20 degrees, bilaterally. The diagnoses noted a herniated
disc at L4-5, a history of trauma with fracture at the right
hip and femur and right radial and ulna, status post repair,
and neurologic deficits to the right lower extremity with
weakness and decreased sensation due to the injuries of the
right hip and leg fracture and the herniated disc. An
associated X-ray report notes no bony abnormalities.
A magnetic resonance imaging (MRI) report from Greystone
Imaging Center, dated in April 2003, contains an impression
of posterior disc bulge without herniation at L4-5, central
canal stenosis at this level due to disc margin as well as
posterior element hypertrophy.
A VA spine examination report, dated in February 2003,
contains a diagnosis of degenerative joint disease of the
lumbar spine with loss of function due to pain.
The Board finds that the criteria for a rating in excess of
20 percent under DC 5292 have not been met. Although there
is some evidence of low back pain, this evidence is
outweighed by the evidence showing that these symptoms were
not sufficiently frequent or severe to warrant a rating in
excess of 20 percent. In summary, the evidence is
insufficient to show listing of whole spine to opposite side,
positive Goldthwait's sign, loss of lateral motion with
osteo- arthritic changes, or some of the above with abnormal
mobility on forced motion. Based on the foregoing, the Board
finds that overall, the evidence does not show that the
veteran's low back disorder is manifested by symptomatology
that more nearly approximates the criteria for an evaluation
of 40 percent under DC 5295, and that the preponderance of
the evidence is against a 40 percent evaluation.
A rating in excess of 20 percent is not warranted under any
other diagnostic code. Schafrath.
Under 38 C.F.R. § 4.71a, DC 5292 (as in effect prior to
September 26, 2003), a 40 percent rating is warranted where
the limitation of motion in the lumbar spine is severe. The
Board finds that a rating in excess of 20 percent under DC
5292 is not warranted. In this regard, the recorded ranges
of motion for the low back in the September 2004 VA
examination report show that the veteran had forward flexion
to 45 degrees, extension to 20 degrees, left lateral flexion
to 25 degrees, right lateral flexion to 20 degrees, and
rotation to 20 degrees, bilaterally. Although a greater
limitation of motion was shown in the February 2003 VA spine
examination report, the September 2004 VA spine examination
report is the most recent examination report of record, and
it is therefore considered to be the most probative evidence
of the veteran's current condition. Francisco. In summary,
in the Board's judgment, the evidence is insufficient to show
a severe limitation of motion. Accordingly, a rating in
excess of 20 percent is not warranted under DC 5292.
With respect to possibility of entitlement to an increased
evaluation under 38 C.F.R. §§ 4.40, 4.45 and 4.59, the Board
has also considered whether an increased evaluation could be
assigned on the basis of functional loss due to the veteran's
subjective complaints of pain. DeLuca; VAOPGCPREC 36-97. In
this regard, the Board initially notes that the veteran's
subjective complaints of pain are specifically contemplated
in the criteria of DC 5295. As for DC 5292, while the
evidence shows that there was increased pain, the September
2004 examination report notes the following: the veteran did
not express any evidence of pain with the exception of
extension of the back; he did not indicate weakness during
the examination of the spine; there was decreased sensation
for pin prick of the lower extremities; sensation for
vibration, and thermal sensation, were normal; reflexes were
2/4 at the left patella, 1/4 at the right patella, 2/4 at the
left Achilles, 1/4 at the right Achilles; gait was abnormal
with a limp and shortening of the right leg due to status
post hip surgery; the veteran was able to walk in a straight
line with some difficulty, and walk on his heels; toe walk
was decreased, especially on the right; he had fairly good
muscle mass strength in the lower extremities.
The most recent evidence of records shows that although there
is some evidence of decreased reflexes and sensation, and
that the veteran's gait was abnormal with a limp and
shortening of the right leg due to status post hip surgery.
However, the examiner stated that the veteran did not express
any evidence of pain with the exception of extension of the
back, and he did not indicate weakness during the examination
of the spine. To the extent that it may be argued that the
findings in the February 2003 VA examination report
(indicating marked painful motion) warrant a rating in excess
of 20 percent, the Board notes that the February 2003 VA
examination report also stated that the veteran had
satisfactory musculature of the back, and in any event, as
previously discussed, the September 2004 VA examination
report is considered the most probative evidence of the
veteran's current condition. Francisco. In summary, when
the ranges of motion in the back are considered together with
the evidence showing functional loss -- to include the
findings pertaining to neurologic deficits, muscle strength,
and the lack of evidence of muscle atrophy - - the Board
finds that there is insufficient evidence of objective pain
on motion, or any other functional loss, to warrant a rating
in excess of 20 percent. DeLuca.
The schedular criteria by which the veteran's lumbar spine
disability can be rated have changed during the pendency of
the veteran's appeal. See 68 Fed. Reg. 51454- 51458 (August
27, 2003) (effective September 26, 2003), codified at 38
C.F.R. § 4.71a, Diagnostic Codes 5235-5243. At that time, DC
5295 was changed to 5237.
According to VAOPGCPREC 7-2003 (Nov. 19, 2003), in Kuzma v.
Principi, 341 F.3d 1327 (Fed. Cir. 2003), the Federal Circuit
overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the
extent it conflicts with the precedents of the United States
Supreme Court (Supreme Court) and the Federal Circuit.
Karnas is inconsistent with Supreme Court and Federal Circuit
precedent insofar as Karnas provides that, when a statute or
regulation changes while a claim is pending before VA or a
court, whichever version of the statute or regulation is most
favorable to the claimant will govern unless the statute or
regulation clearly specifies otherwise. Accordingly, the rule
adopted in Karnas no longer applies in determining whether a
new statute or regulation applies to a pending claim. Id.
However, none of the above cases or General Counsel opinions
prohibits the application of a prior regulation to the period
on or after the effective date of a new regulation. Thus,
the rule that the veteran is entitled to the most favorable
of the versions of a regulation that was revised during his
appeal allows application of the prior versions of the
applicable diagnostic codes at 38 C.F.R. § 4.71a to the
period on or after September 23, 2002 and September 26, 2003
(i.e., the effective dates of the new regulations).
Therefore, the Board will now address whether, for the period
on and after September 26, 2003, the veteran is entitled to a
higher rating under the new criteria. It is noted that the
effective date of any rating assigned under the revised
schedular criteria may not be earlier than the effective date
of that change; the Board must apply only the earlier version
of the regulation for the period prior to the effective date
of change. VAOPGCPREC 3-2000, 65 Fed. Reg. 33,421 (2000).
Under 38 C.F.R. § 4.71a, DC 5237 (lumbosacral strain), and DC
5242 (degenerative arthritis of the spine) (see also DC 5003)
are rated under the "General Rating Formula for Diseases and
Injuries of the Spine." The General Rating Formula provides
that a 40 percent evaluation is warranted for favorable
ankylosis of the entire thoracolumbar spine or forward
flexion of the thoracolumbar spine of 30 degrees or less.
In this case, there is no evidence to show that the criteria
for a rating in excess of 20 percent have been met under the
General Rating Formula. The most recent recorded ranges of
motion for the low back are contained in the September 2004
examination report, which shows that the veteran had 45
degrees of forward flexion. The February 2003 VA spine
examination report noted forward flexion to 48 degrees. In
addition, there is no evidence of ankylosis of the spine, or
that forward flexion of the thoracolumbar spine is 30 degrees
or less. Therefore, a rating in excess of 20 percent is not
warranted.
Finally, with regard to associated neurological
abnormalities, the evidence shows that following a June 1997
MVA, the veteran underwent an open reduction internal
fixation of the right femur with intramedullary nail, and an
open reduction internal fixation of the right forearm with
plate and screws. The discharge diagnoses included
comminuted fracture, right femur, and fracture right forearm.
The September 2004 VA examination report shows that the
examiner stated that the veteran's gait was abnormal with a
limp and shortening of the right leg due to status post hip
surgery, and there is no competent evidence to show that he
has a neurological condition related to his lumbosacral
strain. See General Rating Formula, Note 1. Accordingly,
the Board finds that a rating in excess of 20 percent is not
warranted under the General Rating Formula. 38 C.F.R. §
4.71a, DC's 5237, 5242.
Based on the foregoing, the Board finds that as of August 28,
2001, the impairment resulting from the veteran's low back
disorder warrants no higher than a 20 percent rating.
C. Conclusion
To the extent that the Board has denied the claim, in
reaching this decision the Board considered the doctrine of
reasonable doubt, however, as the preponderance of the
evidence is against the appellant's claim, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
II. VCAA
On November 9, 2000, the President signed into the law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§
5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). The VCAA
imposes obligations on VA in terms of its duty to notify and
assist claimants.
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004), the United States Court of Appeals for
Veterans Claims (Court) held that VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
The Court also held that VA must request that the claimant
provide any evidence in his possession that pertains to the
claim. Id. This "fourth element" comes from the language
of 38 C.F.R. § 3.159(b)(1).
The Board finds that the VCAA notice requirements have been
satisfied. With regard to element (1), above, the Board
notes that the RO sent the veteran notice letters in June
2003 and September 2004, (hereinafter "VCAA notification
letters") that informed him of the type of information and
evidence necessary to support his claim. In addition, by
virtue of the rating decision on appeal, the statement of the
case (SOC), and the supplemental statement of the case
(SSOC), he was provided with specific information as to why
this particular claim was being denied, and of the evidence
that was lacking.
With regard to elements (2) and (3), the Board notes that the
RO's VCAA notification letter informed the veteran of his and
VA's respective responsibilities for obtaining information
and evidence under the VCAA. See 38 U.S.C.A. § 5107(a) (West
2002); 38 C.F.R. § 3.159(c)(1-3) (2004).
Finally, with respect to element (4), the Board notes that
the RO's VCAA notification letters contained a specific
request for the veteran to provide additional evidence in
support of his claim. He was asked to identify all relevant
treatment and to complete authorizations (VA Forms 21-4138
and 21-4142) for all evidence that he desired VA to attempt
to obtain. See also duty to assist letter, dated in July
2001. In May 2005, the veteran requested that his claim be
adjudicated.
What the VCAA seeks to achieve is to give the appellant
notice of the elements outlined above. Once that has been
done-irrespective of whether it has been done by way of a
single notice letter, or via more than one communication-the
essential purposes of the VCAA have been satisfied. Here,
the Board finds that, because each of the four content
requirements of a VCAA notice has been met, any error in not
providing a single notice to the appellant covering all
content requirements was harmless. See, e.g., 38 C.F.R.
§ 20.1102 (2004); Mayfield v. Nicholson, 19 Vet. App. 103
(2005).
The VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. In this case,
the RO has obtained the veteran's service medical records, as
well as VA and non-VA medical records. In this regard, in
January 1997 the Bay Chiropractic Center stated that the
veteran had received treatment on only one occasion, in
December 1995. No records were provided. In September 1998,
the office of Dr. Sylvia Thomas stated that the veteran had
received one free ten-point examination, that he never became
a patient, and that they had no records for him. The veteran
has also been afforded VA examinations. Although the Board
has considered the veteran's representative's argument in an
August 2005 statement that the September 2004 VA examination
was inadequate, the Board declines to find that the September
2004 examination report is inadequate. This examination
report shows that the veteran's complaints, and medical
history, were taken, and that the claims file was reviewed.
The veteran's spine, spinal musculature, strength, associated
neurological functioning, and range of motion, were all
examined and detailed findings were provided. Accordingly,
the Board finds that there is no basis to find that the
veteran's September 2004 examination was inadequate, or that
a remand for a new examination is required. The Board
concludes, therefore, that a decision on the merits at this
time does not violate the VCAA, nor prejudice the appellant
under Bernard v. Brown, 4 Vet. App. 384 (1993).
Based on the foregoing, the Board finds that the veteran has
not been prejudiced by a failure of VA in its duty to assist,
and that any violation of the duty to assist could be no more
than harmless error. See Conway v. Principi, 353 F.3d 1369
(Fed. Cir. 2004).
ORDER
Prior to August 28, 2001, a rating in excess of 10 percent
for lumbosacral strain is denied.
As of August 28, 2001, a rating of 20 percent, and no more,
is granted for lumbosacral strain, subject to the laws and
regulations governing the award of monetary benefits.
____________________________________________
CONSTANCE B. TOBIAS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs